1 STATE OF OKLAHOMA
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2 2nd Session of the 59th Legislature (2024)
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3 SENATE BILL 1976 By: Deevers
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6 AS INTRODUCED
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7 An Act relating to crimes and punishments; amending
7 21 O.S. 2021, Sections 1024.1, 1024.2, and 1040.8,
8 which relate to obscenity and child pornography;
8 defining term; providing severability clause;
9 authorizing civil action; providing elements of
9 certain award; modifying elements of felony offense;
10 providing certain construction; modifying elements of
10 misdemeanor offense; and providing an effective date.
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13 BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
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14 SECTION 1. AMENDATORY 21 O.S. 2021, Section 1024.1, is
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15 amended to read as follows:
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16 Section 1024.1. A. As used in Sections 1021, 1021.1 through
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17 1021.4, Sections 1022 through 1024, and Sections 1040.8 through
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18 1040.24 of this title, “child pornography” means and includes any
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19 visual depiction or individual image stored or contained in any
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20 format on any medium including, but not limited to, film, motion
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21 picture, videotape, photograph, negative, undeveloped film, slide,
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22 photographic product, reproduction of a photographic product, play
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23 or performance wherein a minor under the age of eighteen (18) years
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24 is engaged in any act with a person, other than his or her spouse,
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 1 of sexual intercourse which is normal or perverted, in any act of
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2 anal sodomy, in any act of sexual activity with an animal, in any
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3 act of sadomasochistic abuse including, but not limited to,
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4 flagellation or torture, or the condition of being fettered, bound
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5 or otherwise physically restrained in the context of sexual conduct,
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6 in any act of fellatio or cunnilingus, in any act of excretion in
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7 the context of sexual conduct, in any lewd exhibition of the
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8 uncovered genitals in the context of masturbation or other sexual
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9 conduct, or where the lewd exhibition of the uncovered genitals,
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10 buttocks or, if such minor is a female, the breast, has the purpose
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11 of sexual stimulation of the viewer, or wherein a person under the
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12 age of eighteen (18) years observes such acts or exhibitions. Each
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13 visual depiction or individual image shall constitute a separate
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14 item and multiple copies of the same identical material shall each
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15 be counted as a separate item.
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16 B. As used in Sections 1021 through 1024.4 and Sections 1040.8
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17 through 1040.24 of this title:
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18 1. “Obscene material” means and includes any representation,
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19 performance, depiction or description of sexual conduct, whether in
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20 any form or on any medium including still photographs, undeveloped
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21 photographs, motion pictures, undeveloped film, videotape, optical,
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22 magnetic or solid-state storage, CD or DVD, or a purely photographic
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23 product or a reproduction of such product in any book, pamphlet,
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 1 magazine, or other publication or electronic or photo-optical
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2 format, if said items contain the following elements:
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3 a. depictions or descriptions of sexual conduct which are
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4 patently offensive as found by the average person
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5 applying contemporary community standards,
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6 b. taken as a whole, have as the dominant theme an appeal
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7 to prurient interest in sex as found by the average
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8 person applying contemporary community standards, and
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9 c. a reasonable person would find the material or
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10 performance taken as a whole lacks serious literary,
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11 artistic, educational, political, or scientific
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12 purposes or value.
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13 The standard for obscenity applied in this section shall not
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14 apply to child pornography;
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15 2. “Performance” means and includes any display, live or
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16 recorded, in any form or medium;
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17 3. “Sexual conduct” means and includes any of the following:
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18 a. acts of sexual intercourse including any intercourse
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19 which is normal or perverted, actual or simulated,
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20 b. acts of deviate sexual conduct, including oral and
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21 anal sodomy,
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22 c. acts of masturbation,
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23 d. acts of sadomasochistic abuse including but not
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24 limited to:
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 1 (1) flagellation or torture by or upon any person who
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2 is nude or clad in undergarments or in a costume
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3 which is of a revealing nature, or
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4 (2) the condition of being fettered, bound, or
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5 otherwise physically restrained on the part of
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6 one who is nude or so clothed,
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7 e. acts of excretion in a sexual context, or
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8 f. acts of exhibiting human genitals or pubic areas; and
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9 4. “Explicit child pornography” means material which a law
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10 enforcement officer can immediately identify upon first viewing
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11 without hesitation as child pornography.
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12 The types of sexual conduct described in paragraph 3 of this
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13 subsection are intended to include situations when, if appropriate
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14 to the type of conduct, the conduct is performed alone or between
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15 members of the same or opposite sex or between humans and animals in
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16 an act of apparent sexual stimulation or gratification; and
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17 5. As used in this title, “unlawful pornography” means any
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18 visual depiction or individual image stored or contained in any
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19 format on any medium including, but not limited to, film, motion
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20 picture, videotape, photograph, negative, undeveloped film, slide,
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21 photographic product, reproduction of a photographic product, play,
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22 or performance in which a person is engaged in any of the following
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23 acts with a person:
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24 a. sexual intercourse which is normal or perverted,
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 1 b. anal sodomy,
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2 c. sexual activity with an animal,
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3 d. sadomasochistic abuse,
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4 e. flagellation or torture,
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5 f. physical restraint such as binding or fettering in the
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6 context of sexual conduct,
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7 g. fellatio or cunnilingus,
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8 h. excretion in the context of sexual conduct,
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9 i. lewd exhibition of the uncovered genitals in the
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10 context of masturbation or other sexual conduct, and
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11 j. lewd exhibition of the uncovered genitals, buttocks,
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12 or, if such person is female, the breast, for the
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13 purpose of sexual stimulation of the viewer.
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14 C. It is the intent of the Legislature that every provision,
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15 section, subsection, sentence, clause, phrase, or word in the
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16 definition of unlawful pornography is severable from each other,
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17 such that if any of the listed items is found by a court to be
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18 invalid or unconstitutional, the remaining items will be severed and
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19 may not be affected. All constitutionally valid applications of
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20 this section shall be severed from any application that a court
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21 finds to be invalid, leaving the valid applications in force,
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22 because it is the intent and priority of the Legislature that the
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23 valid applications be allowed to stand alone. Even if a reviewing
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24 court finds a provision of this section to be an unconstitutional
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 1 restraint in a large or substantial fraction of relevant cases, the
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2 applications that do not present an unconstitutional restraint shall
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3 be severed from the remaining applications and shall remain in
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4 force, and shall be treated as if the Legislature had enacted a
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5 statute limited to the person, group of persons, or circumstances
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6 for which the application of the statute does not present an
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7 unconstitutional restraint on protected speech. If any court
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8 declares or finds a provision of this section facially
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9 unconstitutional, when discrete applications of that provision can
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10 be enforced against a persons, group of persons, or circumstances
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11 without violating the United States Constitution and Oklahoma
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12 Constitution, those applications shall be severed from all remaining
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13 applications of the provision, and the provision shall be
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14 interpreted as if the Legislature had enacted a provision limited to
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15 the person, group of persons, or circumstances for which the
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16 provision’s application will not violate the United States
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17 Constitution and Oklahoma Constitution.
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18 D. The Legislature further declares that it would have enacted
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19 this section, and each provision, subsection, sentence, clause,
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20 phrase, or word, and all constitutional applications of this
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21 section, irrespective of the fact that any provision, subsection,
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22 sentence, clause, phrase, or word, or application of this section,
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23 were to be declared unconstitutional or to represent an
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24 unconstitutional restraint. If any provision of this section is
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 1 found by any court to be unconstitutionally vague, then the
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2 applications of that provision that do not present constitutional
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3 vagueness problems shall be severed and remain in force. No court
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4 may decline to enforce the severability requirements of this section
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5 on the grounds that severance would rewrite the statute or involve
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6 the court in legislative or lawmaking activity.
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7 E. Each of the items of unlawful pornography in paragraph 5 of
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8 subsection B are depictions of sexual conduct which are patently
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9 offensive under contemporary community standards in this state, and
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10 have as their dominant theme an appeal to prurient interest in sex
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11 under contemporary community standards of this state, and may not be
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12 produced or distributed within the state if they lack serious
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13 literary, artistic, educational, political, or scientific purposes
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14 or value.
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15 F. Any person, other than an officer or employee of a state or
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16 local governmental entity in this state, may bring a civil action
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17 against any person who:
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18 1. Produces or distributes unlawful pornography that lacks
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19 serious literary, artistic, educational, political, or scientific
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20 purposes or value;
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21 2. Knowingly engages in conduct that aids or abets the
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22 production or distribution of unlawful pornography that lacks
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23 serious literary, artistic, educational, political, or scientific
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24 purposes or value; or
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 1 3. Intends to engage in the conduct provided for in paragraphs
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2 1 and 2 of this subsection.
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3 G. If a claimant prevails in an action brought under this
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4 section, the court shall award:
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5 1. Injunctive relief sufficient to prevent the defendant from
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6 violating this section or engaging in acts that aid or abet
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7 violations of this section;
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8 2. Statutory damages not less than Ten Thousand Dollars
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9 ($10,000.00) for each image or depiction produced or distributed
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10 within this state; and
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11 3. Court costs and attorney fees.
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12 H. Notwithstanding any other provision of law, a court may not
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13 award court costs or attorney fees to a defendant in an action
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14 brought under this section.
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15 SECTION 2. AMENDATORY 21 O.S. 2021, Section 1024.2, is
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16 amended to read as follows:
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17 Section 1024.2. It shall be unlawful for any person to buy,
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18 procure, view, or possess child pornography in violation of Sections
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19 or obscene materials or to distribute any unlawful pornography that
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20 lacks serious literary, artistic, educational, political, or
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21 scientific purposes or value as defined in Section 1024.1 through
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22 1024.4 of this title. Such person shall, upon conviction, be guilty
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23 of a felony and shall be imprisoned for a period of punishable by
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24 imprisonment in the custody of the Department of Corrections for not
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 1 more than twenty (20) years or a fine up to, but not exceeding, not
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2 to exceed Twenty-five Thousand Dollars ($25,000.00) or by both such
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3 fine and imprisonment. This shall not be construed to prevent
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4 spouses from sending images of a sexual nature to each other.
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5 SECTION 3. AMENDATORY 21 O.S. 2021, Section 1040.8, is
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6 amended to read as follows:
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7 Section 1040.8. A. No person shall knowingly photograph, act
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8 in, pose for, model for, print, sell, offer for sale, give away,
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9 exhibit, publish, offer to publish, or otherwise distribute,
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10 display, or exhibit any book, magazine, story, pamphlet, paper,
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11 writing, card, advertisement, circular, print, picture, photograph,
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12 motion picture film, electronic video game or recording, image,
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13 cast, slide, figure, instrument, statue, drawing, presentation, or
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14 other article which is obscene material, unlawful pornography, or
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15 child pornography, as defined in Section 1024.1 of this title. In
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16 the case of any unsolicited mailing of any of the material listed in
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17 this section, the offense is deemed complete from the time such
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18 material is deposited in any post office or delivered to any person
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19 with intent that it shall be forwarded. Also, unless preempted by
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20 federal law, no unsolicited mail which is harmful to minors pursuant
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21 to Section 1040.75 of this title shall be mailed to any person. The
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22 party mailing the materials specified in this section may be
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23 indicted and tried in any county wherein such material is deposited
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 1 or delivered, or in which it is received by the person to whom it is
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2 addressed.
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3 B. Any person who violates any provision of this section
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4 involving obscene materials or unlawful pornography, upon
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5 conviction, shall be guilty of a misdemeanor and shall be punished
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6 by imprisonment in the county jail for not more than one (1) year,
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7 or by a fine of not less than Two Thousand Dollars ($2,000.00), or
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8 by both such fine and imprisonment.
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9 C. Any person who violates any provision of this section
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10 involving child pornography, upon conviction, shall be guilty of a
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11 felony and shall be punished by imprisonment in the custody of the
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12 Department of Corrections for not less than three (3) years and not
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13 more than twenty (20) years, or by a fine of not less than Ten
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14 Thousand Dollars ($10,000.00), or by both such fine and
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15 imprisonment. Any person convicted of a second or subsequent
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16 violation shall, upon conviction, be punished by imprisonment in the
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17 custody of the Department of Corrections for not less than ten (10)
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18 years and not more than thirty (30) years, or by a fine of not less
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19 than Twenty Thousand Dollars ($20,000.00), or by both such fine and
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20 imprisonment. The violator, upon conviction, shall be required to
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21 register as a sex offender under the Sex Offenders Registration Act.
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22 SECTION 4. This act shall become effective November 1, 2024.
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24 59-2-3305 CN 1/18/2024 1:53:14 PM
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